1. The plaintiffs are the appellants here. The suit was filed to set aside a summary order passed in I. A. No. 2588 of 1967 in O. S. No. 70 of 1947 on the file of the Sub Court, Kozhikode, and also to declare the plaintiff's tenancy rights on the suit properties and for an injunction restraining the defendants from entering on the properties. The suit was decreed by the trail court declaring the plaintiff's tenancy rights and restraining the defendants from entering on the properties. In appeal by defendants 2, 4, 5 and 6 the appellate court confirmed the finding of tenancy, but dismissed the suit as not maintainable. The appellate court found that the order Ext. A 10 in I. A. No. 2588 of 1967 was an order passed under 0.40 Pule I Sub R.2 and therefore the remedy of the aggrieved party is only by way of an appeal and a fresh suit to set aside the order is not maintainable. It is from this decision that the Second Appeal has been filed.

2. The matter came up before one of us and by order dated 4-4-1975 the case was referred to a Division Bench. The reference order reads:

'The principal question involved in the appeal is whether the appellants' suit is incompetent or barre